TSCRA supports protecting groundwater as a private property right

Members of the Texas and Southwestern Cattle Raisers Association (TSCRA) gathered at the state capitol Tuesday to show their support for Senate Bill (SB) 332.

SB 332, introduced by Senator Troy Fraser, amends the Texas Water Code by clarifying that landowners own the groundwater beneath their land, and that they have a right to capture it. SB 332 in no way takes away authority from groundwater conservation districts (GCDs) to protect aquifers. SB 332 would, however, require GCDs to justify their actions when regulating the right to capture water.

TSCRA Legislative and Tax Committee Chairman Arthur Uhl, a rancher and attorney from San Antonio, testified before the Senate Natural Resources Committee on behalf of the bill.

"SB 332 has become necessary to legislatively reaffirm well settled Texas law that the landowner owns the groundwater under their land," said Uhl.

"Unfortunately, a few groundwater conservation districts have taken the legal position that the landowner has no interest in groundwater, that groundwater is somehow not owned by anyone, or is owned by the state. This is a misguided attempt on the part of a few districts to enhance their ability to regulate. The problem is that this position is legally incorrect, unconstitutional and unnecessary.

"TSCRA supports reasonable regulation through local groundwater conservation districts. We believe groundwater is most fairly and efficiently managed by local groundwater districts. While SB 332 clarifies that landowners have an ownership interest in groundwater below the land and that they have a right to produce it, it does not take authority away from groundwater districts," Uhl continued.

Groundwater conservation districts (GCDs) are concerned that SB 332 would lead to more lawsuits, or takings claims, from landowners and bankrupt GCDs. According to Uhl and TSCRA, this is false for two reasons.

Uhl says that state agencies and local governments deal with and regulate private property every day and do not face countless lawsuits.

"For example, the same way a person can own a car and the state can effectively regulate the use of that car, a landowner can own groundwater and the district can effectively regulate the use of that groundwater. Likewise, our cities and counties can tell us what we can and can't do with and on our property, groundwater districts can tell us if we can drill a well, where we can drill a well, and how much groundwater we can pump.," Uhl said.

Second, Uhl says significant legal obstacles and financial disincentives face a landowner wanting to bring a takings claim. Landowners must meet substantial and well settled legal standards. What's more, if the landowner loses, under Chapter 36 of the Water Code, the landowner can be required to pay the legal fees of the district. This is not required of the GCD if the landowner wins. All of these factors serve as deterrents to landowners to sue a GCD. SB 332 does not change that.

"Landowners believe that the state can have effective groundwater regulation and management while still respecting landowners' ownership interest in groundwater below the surface. The fact that groundwater regulation and management may require more justification and may cost more does not justify taking landowners' private property," Uhl concluded.